Texas Division, Sons of Confederate Veterans v. Vandergriff, 2014 WL 3558001 (5th Cir.) involved the rejection of Plaintiff’s specialty license plate design application (which includes the Confederate Battle Flag) submitted to Defendants, the Chair and Motor Vehicle Board of Texas. In addition to publicly-issued license plates, Texas allows private vendors to propose plates to the Board and specifically allows nonprofit organizations to propose plate designs. The Board may deny the design if it “may be offensive to any member of the public.” The Sons of Confederate Veterans (SCV) had its license plate design rejected because of the association of the Confederate flag with hate and hate groups. The Federal District Court found the Texas specialty license plate program was a non-public forum, that the denial was content-based rather than viewpoint based, and that the rejection was reasonable under the circumstances, so that a First Amendment violation did not occur.

On review, the Fifth Circuit turned first to jurisdiction, and it had previously denied relief in Henderson v. Stalder, 407 F.3d 351 (5th Cir., 2005), pursuant to the Tax Injunction Act in a case in which pro-choice advocates alleged Louisiana was engaged in allowing pro-life license plates inimical to its views. The court distinguished Henderson and like cases when the license fees imposed were not a tax, a party (other than a taxpayer) is the plaintiff and the result will be to enrich, rather then to deplete, public coffers. Here, SCV is not a taxpayer and the result of the litigation, if successful, would raise state revenues. The Fifth Circuit then proceeded to review the grant of summary judgment by the trial court on a de novo basis.

The court saw the issues on appeal as: whether the speech at issue was public or private and, if private, whether the denial constituted a permissible content-based regulation or impermissible viewpoint discrimination.

The First Amendment does not regulate government speech but prohibits most government regulations of private speech. The difference between public and private speech is determined whether a reasonable spectator would believe that the government was speaking to them. In this case, unlike a permanent monument in a park, a license plate is temporary expression and, in this case, open for diverse expressions of viewpoints by the public agency and nonprofits. Few would classify vanity license plates or the 350 existing specialty plates in Texas as government speech.

Having found the speech to be private, the court turned to whether the action was content, regulation or viewpoint discrimination, the latter of which is “presumptively impermissible” and, in reality, an egregious form of impermissible content discrimination. SCV argued the views of those offended by the Confederate battle flag is no different then the many number of veterans license plates available in Texas for those who have fought in our country’s wars and the only reason the subject design was rejected was because of the viewpoint it represents. The First Amendment was designed to protect speech from coercion over its viewpoint. The standard used in this case “might be offensive to any member of the public” lacks any limiting sideboards and gives unbridled discretion to the Board. The First Amendment is not met when a public entity suppresses all viewpoints on a particular subject. A public agency may not shield the public from minority views that might be offensive to some. Accordingly, the trial court decision was reversed.

Judge Jerry E. Smith dissented, finding no “reasonable observer” standard in the United States Supreme Court case law. The dissent agreed that SCV had standing, notwithstanding the Tax Injunction Act and that the case could be classified as viewpoint discrimination, but the dissent also thought that the design constituted government speech. Because the reasonable observer test was not appropriate (in large part because that standard was derived from a concurring opinion of Justice Souter in Pleasant Grove City, Utah v. Summum, 555 U.S. 467 (2009), which the rest of the court did not adopt and which the dissent felt was contradicted by other Supreme Court precedent).

The dissent agreed that four or five of the other circuits had found similar licensing programs were not “government speech” but suggested that none of the decisions deals adequately with Summum (in which the United States Supreme Court found the placement of monuments was government speech, to which the First Amendment was not applicable). Whether the monument were financed publically or privately and installed with government permission was irrelevant. In that event, license plates (which are mandatory) could have a program under which private persons or nonprofit organizations could engage an alternative design, subject to Board approval. The court added:

* * *The reasoning in Summum informs that if Texas license plates would constitute government speech only if Texas has designed the plates itself, they do not lose their governmental character just because Texas accepted a privately designed message, endorsed it, and then placed it on its plates. [Footnote omitted.]

As with monuments in public places, license plates are identified with the state governments that issue them and specialty license plates cannot exist without the state’s cooperation and offer to manufacture and sell them. Thus the law allows Texas to choose whether it wishes to be associated with the Confederacy by others. SCV has other means to advance its message and the state is not required to have the state embrace that message. Confederate flags may be displayed as bumper stickers or other appendages on cars, houses, etc. The proper analogy in this case is to monuments in public parks, rather then leafleting.

The dissent rejected the binary choice of the majority that the distinction is between government and private speech and that, if the speech be private, there can be no viewpoint discrimination so that if a driver sees an offensive license plate design, she would naturally attribute that design to the driver, rather than the state. But in Summum, the United States Supreme Court found the government had the right to speak and express its own views in monuments, regardless of how those monuments were financed. The association that public and private persons present at events (such as sponsorships in football games) is voluntary and meant to promote that association in the public mind. Summum says that government need not be forced to associate with all viewpoints because it has associated itself with one. The government may not force someone to disseminate its message (so that a state could not force a driver to have a “choose life” or “support choice” license plate), and it need not accommodate all views in license plate designs.

While this case does not, strictly speaking, relate to land use it does have importance in dealing with uses and public spaces as well as with messages that are regulated under land use law. The dissent in this case appears to have the more cogent argument.

WSG Holdings, LLC v. Bowie, 57 A 3d 463 (Md., 2012) involved a contested special exception (conditional use permit) for a gun range which was heard by the Charles County Board of Zoning Appeals. The Board conducted a site visit accompanied by representatives of the applicant as well as two opponents. Other opponents were barred from the site and there was no transcript of the visit. The Board granted the application and trial court affirmed, except for a remand on some findings deficiencies. The trial court rejected inter alia opponents’ contention that the site visit violated the state’s public meetings law. The intermediate appellate court found such a violation and remanded the decision. The applicant then sought review.

The decision to conduct the site visit with limited attendance was made in a public meeting and without opposition from the audience. There was no discussion of transcription of that meeting at that time. At the site visit, members of the Board were apparently separated into groups with applicant representative speaking to various aspects of the proposal to different subgroups of the Board. Before the final vote, a member of the public filed a written objection to the exclusion of the general public, the lack of a transcript, as well as the inability to respond to evidence gained at the visit, requesting that the record be reopened to comply with the Maryland Public Meetings Law. The Board accepted the applicant’s substantive testimony, but denied other relief, granting the application with findings which included references to the site visit.

The trial court found that the applicants had not preserved their public meetings objection for judicial review, given a lack of objection to the process along with its selection of two opponent representatives at an open meeting. The intermediate court found the post-site visit objection as sufficient to preserve the public meetings contentions. On review, the opponents contended that the public meetings law violation could not be raised by those attending the public meeting, or those who had not protested loudly enough to the objections to be recorded and that the post-site visit objection was sufficient to preserve error.

The court began its analysis with the strong commitment of the state legislature to the public meetings law, which was also reflected in the county Code and the procedural rules adopted by the Board for the conduct of its hearings (which referenced that law and provided for site visits to be recorded and for public inclusion). Noting that neither the Board nor the parties could agree on what had happened on the site visit, the court noted the detailed post-visit objection to the alleged breach of a public meetings law, the county’s Code, and the Board’s rules of procedure which the Board had generally denied without comment. The court observed further that, while site visits may be common, reliance on them by decision-makers implicates heightened procedural requirements and that when the visit goes beyond mere observation (as it did here) the site visits should be “on the record in the presence of the parties.” Failing this, there should be an opportunity to challenge the evidence received in that visit by cross-examination or other means. While the county Code of the Board’s rules refers to the conduct of a “hearing” and did not refer necessarily to “meetings,” state law does so regulate meetings and governs here. In any event the Board violated the county’s Code and its own rules over the conduct of hearings.

The court concluded that the Board’s site visit without sufficient notice, without a record being kept, and without allowing members of the public to attend, especially where site visit information was used in the findings to justify approval, was not fair to the public. Proceeding to the remedy, the court cataloged the violations of law and concluded that cumulatively, these violations created an irreparable injury to the opponents so that the decision was void ab initio. The case was thus remanded for an entirely new hearing.

The efforts of the Oregon Open Meetings law are largely untested in site visit cases in this state; however, there is little reason to believe that the outcome would have been different if the same facts were presented.

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